by Hon. Mitchell Kaplan

Voice of the Judiciary

Before I was appointed a judge, if someone had asked me to list the most interesting things that a trial judge does, I doubt that I would have included chatting with jurors after they have rendered their verdict. However, over the last seven years I have found those post-verdict conversations to be enlightening, reaffirming, and frequently entertaining.

In each county, Superior Court judges are assigned on a rotating basis, each week, to welcome the day’s pool of prospective jurors, as required by law. See G.L. c. 234A, § 65. Depending on the county in which you are sitting, your turn comes up every couple months. Judges take different approaches in their greetings. Part of my approach is try to convince my audience, some of whom are usually skeptical, that most people find jury service an interesting and rewarding experience. I go on to say that when we (judges) speak to jurors who have been seated on juries after they have returned their verdicts, we find that sometimes they have made new friends, they have learned something more about our criminal or civil justice system, and they always feel that they have made an important contribution to their community. I say this to encourage our potential jurors to serve, and also because I believe it is true.

While I have had the good fortune to speak to a great many juries over the past seven years, these are just personal observations and, therefore, only anecdotal. After I receive a verdict (or declare a mistrial) and formally thank the jurors for their service, I always tell the jurors in open court that I would like to thank them in a less formal setting in the jury room. I make it clear that this isn’t an order and they are free to go, but if they have time I hope they will stay a few moments. I don’t think that any juror has ever left before my court officer escorted me to the jury room. While some juries are polite, but clearly anxious to disperse and go on about their business, the majority of juries have questions they want to ask, suggestions they want to offer, or generally want to chat about their experience. I think that juries that have “bonded” during their service are more likely to linger.

After explaining that I do not want to know anything about what jurors said to one another or the course of their deliberations, which I hope they will hold confidential (although having returned their verdict they are freed from any legal obligations not to speak to others), I ask if any juror has any question, comment or observations. Sometimes that prompts a number of jurors to speak up and sometimes I have to prod with a few questions of my own before a conversation ensues. Here are some general observations.

Jurors take their responsibilities very seriously–they truly understand that they have been the judges of the facts of the case. Obviously, the subject matter of cases varies. Some cases are clearly more difficult to decide; some are more emotional; and in some the consequences of the verdict are clearly enormous. Frequently, jurors are physically exhausted at the end of their deliberations. It is not uncommon to find jurors in tears or fighting them back. I suspect sometimes that may be because a juror has been convinced to change his or her view of the evidence or a fact. Sometimes, it is because they have had to make an emotionally difficult decision.

I believe that jurors take very seriously their oath to apply my instructions to the facts as they find them. Personally, I don’t think that I have ever witnessed jury nullification. To the contrary, I have had jurors in tears in a personal injury case because they had found for the defendant, even though the plaintiff was very sympathetic or had suffered a debilitating injury. They had concluded that the defendant just was not negligent. On a number of occasions in criminal cases, it has been clear that the jurors thought that the defendant was probably guilty of the crime, but the prosecution had not proven guilt beyond a reasonable doubt. Conversely, jurors have found defendants guilty, but expressed concern over the potential length of the sentence.

Frequently, jurors ask me if there was any additional evidence that had been excluded from trial. More often this comes up in criminal cases, but sometimes in civil cases as well. I don’t have the sense that the jurors are angry that evidence was not presented, they just wish that they had more material on which to base their decisions. I think that collectively juries are very good at figuring out where the missing pieces are in the chain of evidence or events.

A recurring comment is that jurors do not want the lawyers to repeat the same point, over and over. Innumerable times juries have told me that they got it the first time, certainly the second time, and by the fifth time they really didn’t want to hear about it again. Indeed, some juries find the repetition condescending not convincing. Often juries will point out that the trial bogged down over “stuff” that was not relevant to their decision making. It was as if the lawyer was afraid to leave something out. I think that jurors appreciate charts and graphs that make data understandable, although they will do their best to sort through materials themselves if they have to. In one case in which critical evidence was on a surveillance video, a technologically savvy juror displayed the video frame by frame during deliberations. Juries tell me that they try to get past which lawyer they liked the best, but obviously they appreciate lawyers who make their job easier.

I think that even in an informal setting there is a tendency for jurors to tell judges what they think the judge would like to hear. Nonetheless, when I ask, jurors overwhelming tell me that their jury service has been a rewarding experience and they would like to do it again—but not too soon (especially when the trial takes more than a week).

I truly believe that if lawyers, or the public, were flies on the wall when judges chatted with jurors after a trial, it would make them believe what I believe, that while jury trials may not be the perfect way to resolve disputed issues of fact, they are the best way so far devised.

Mitchell Kaplan is a justice of the Superior Court and currently sits on the Business Litigation Session of the court. He was previously a partner at Choate, Hall, & Stewart and served as a law clerk to Hon. Joseph L. Tauro, USDC.